The Function of Property Law and Effects of Exclusion - Case Study Example

Table of Contents 1.0.Introduction 2 2.0.The Function of Property Law and Effects of Exclusion 3 3.0.Case of human embryo 4 4.0.Case of human tissue 5 5.0.Conclusion 8 6.0.Bibliography 9 1.0. Introduction What Kevin Gray finds is that when “property” is subjected to close analysis the concept vanishes into thin air. While this report finds the statement to be considerate in light of the complexities of the law, further reality is, with regard to schema of significant legal subject areas, property law is the overall mechanism by which the very same law guides the interactions between ‘property’ and people. What Kevin Gray seems to be suggesting generates a torrent of unique and incompatible responses. Although this report finds that the treatment of well-established underpinnings of ‘property’ can be understood from different judicial decisions in Australia and specifically, Western Australian legislation, difficulties still arise in unfamiliar and new contexts. A clear case is where there are new potentialities of separation1 brought by technological change, new sources of wealth2 as well as possibilities of exclusion. In such situations, it is essential to make a decision on how new properties will be treated---as such Kevin Gray believes property will vanish into thin air if it fails to be an object of property rights. It is from this basis that the report supports the argument postulated by Kevin Gray with regard to multifaceted approaches to what understanding property in Australian Law. 2.0. The Function of Property Law and Effects of Exclusion The premise here is that it is from the very same law that one can identify who is subject to which legal relations when it comes to a property and how these can be enforced.3 On the other hand, it is on the premise of the very same law that some properties fall entirely or partly outside the realm of it (property law), only sui generis (specified tailored) rules are able to perform the same function. As noted in recent judgement4, in absence of what courts can determine as sufficient sui generis strategy, a failure to apply property law generate wrongs that come without remedies as well as pervasive uncertainty. The concept of exclusion that makes the aspect of property complicated is that there is a choice between allowing general rules of property law to take its operation and attempting to impose a sui generis. As such, regime needs to take account of the possibility of incompleteness, redundancy and delay in the involved in the former.5 3.0. Case of human embryo To coceptualise the position held above, this report compares what property law in Australia and United States understand with regard to embryos. To begin with, treatment of human embryo has been regarded as inappropriate.6 Separately, it is held in United States that embryos are neither property nor persons but are entitled to special treatment and respect.7 The point of concurrence with Kevin Gray is that if such is the stance then interactions with embryo must be regulated on the premise of sui generis.8 A more complicated case was the case in California involving Moore v Regents of the University of California (Moore)9 While Moore maintained that the spleen was his property; California Supreme Court rejected this claim only allowing a breach of fiduciary duty (Roderick et al. 2002). 4.0. Case of human tissue This case disappears in a thin air when compared with Australian property law that when there is tissue from a corpse, there is no property entitled10 (of course this has varying degree in United States). Contrariwise, considering Roche v Dougla11s in Australia, a Master of the Supreme Court of Western Australia made an order that certain parts of a tissue should be tested to be ‘property’. The fact that the court ruled out the possibility of all tissues being ‘property’ underscores the verdict given by Kevin Gray. Basing on the function of property law and effects of exclusion as connected with embryo and tissue, the understanding is that Australian Property Law is not clear on what a property is. As such, Roger (2000) notes that object of property has significant practical implications when given myriad contexts. In some jurisdictions as well as cases, other legal doctrines or sui generis rule can fulfill similar objectives to property law.12 The realization thus far is to understand what property means in light of Australian property law since the basis of the very same law has been disputed by Kevin Gray and even supported by relevant cases. What Australian law contains as definition come in one of the many forms. One of such is the insistence that rights owed to individuals can fall into some recognized category (such categories has been viewed differently in category tests) such as the category test in Ainsworth test (National Provincial Bank Ltd v Ainsworth)13 This is the same premise when it comes to financial matters and excludability test is applied. Dealing with recognized category test, it has been understood that what is deemed as property under Australian property law diminishes as soon as a claim is instigated. As such, the meaning of a property constantly lacks meaning. Australian case involving Victoria Park Racing and Recreation Grounds Co Ltd v Taylor is a good example.14 In their judgement, the High Court opined that there was no property in a spectacle. When such premise is to be held then how else would a race conducted on a person’s land cease to be the land of the person? It even appalled that Dixon J believed that only rights in previously recognized categories stand to be the property.15 As it was captured in the introduction, a property lacks meaning and vanishes in the thin air if property law does not recognize it in a new environment. In fact, Kevin Gray believes that these properties vanish into a thin air because the law allows such properties to be limited to previously recognized categories thus affecting the scope of such categories. One High Court judge recently criticized the conclusion made concerning Victoria Park Racing16 Another test that has been construed shallowly is he Ainswort. To understand how this point, this report revisits statement made by Lord Wilberforce. He stated: Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.17 Though it was in a different jurisdiction, it has been adopted in Western Australia to understand what a property is.18 As understoond in Australia, it remains that property only contingently belong to a given person. Again, since the requirement has been falling short of alienability, what has been seen is that the contingency is conceptual or physical instead of legal.19 Of course this report appreciates that there are some ‘properties’ which cannot be categorized as rights as they belong to one person. For instance, it is vague to argue in light of Australian property law that emotions or self-consciousness are properties. Instead of overly relying on Ainswort to support the stance taken by Kevin Gray, commerce test is essential especially in testing what a property is in light of technological advancement. In fact, a number of judges prefer going the commerce test way so as to ensure consistency between commercial meaning and legal meaning of what a property is. A case of the integration of commercial meaning and legal meaning in understanding diversity of property was in Halwood Corporation Ltd v Chief Commissioner of Stamp Duties. The argument has been if commerce can treat valuables as well as transferable assets like property then courts should be obligated to do the same. The point at which Kevin Gray believes that a property starts to diminish is that if an item is not commercially valuable then it does not mean the same item should be prevented from being a property under the law. To understand the dimensions of technology with regard to property, James (2005) postulates that the excludability test has to be revisited. First, the privilege (right) to exclude others is the most fundamental of all the property rights.20 Therefore excludability test postulates that an item can be a property if such is physically, conceptually or legally possible to prevent others from using it. The challenge with this test has been its technological contingency. Rather than what courts have held regarding properties and technology, it can be true to believe that properties from which people cannot exclude others can as well be argued not to be anyone’s property instead of making any assumption that such properties cannot be objects of property at all. 5.0. Conclusion This paper is not the first to review controversies that surround the understanding of property law especially in new contexts. It is noted; from cases studies presented that even lawyers struggle to apply property concepts in different dimensions and contexts. As such, the aspect of property vanishing in thin air is strongly supported in the report. It is therefore necessary to have an understanding of the underlying principles in order to apply them to new contexts, perhaps as yet unimagined, as they arise. 6.0. Bibliography James McConvill, ‘Do Shares Constitute Property? Reconsidering a Fundamental, yet Unresolved, Question’ (2005) 79 Australian Law Journal 251. Roger Magnusson, ‘The Use of Human Tissue Samples in Medical Research: Legal Issues for Human Research Ethics Committees’ (2000) 7 Journal of Law and Medicine 390 at 394 Roderick Meagher, Dyson Heydon & Mark Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (2002) at 126. Read More